House lobbyist gift 'ban' has loopholes

The lobbying reform bill working its way through the General Assembly will impose dramatic changes on lobbyists and legislators, supporters claim.

But say you’re a high-priced lobbyist looking to impress an influential lawmaker with fine wine and a thick steak at a Buckhead restaurant. Under House Bill 142, you’d be out of luck, right?

Well, keep that American Express gold card at the ready!

In its current iteration, HB 142 offers several ways lobbyists can continue to show their affection for politicians, even in the more intimate settings the bill is supposed to curb.

Stefan Passantino, a partner in the law firm McKenna Long & Aldridge and an expert on lobbying rules, gives the authors of the House bill credit for taking up reform. But the bill contains “a lot of very unworkable pieces,” he said.

“This is a piece of legislation whose heart is in the right place,” he said. “The devil, as they say when you are dealing with lawyers, is in the details.”

House Speaker David Ralston, R-Blue Ridge, sponsored the bill, which passed the House last month by a 164-4 vote. The Senate is scheduled to take up the measure in committee on Tuesday. HB 142 calls for an outright ban on lobbyist gifts, including restaurant meals, golf outings, football tickets and the like. But the bill also carves out broad exceptions.

At a meeting of the Atlanta Press Club last month, disgraced former Washington lobbyist Jack Abramoff congratulated the House for passing limitations on lobbyists but said the plan has so many loopholes that he could “run through that bill in about three seconds.”

The largest of the exceptions is the one that allows lobbyists to buy dinner and drinks for lawmakers in groups. The groups can be as large as the entire General Assembly or as small as a subcommittee or local delegation.

The exemption is similar to a rule adopted by the Senate in January limiting lobbying gifts to $100 or less. That rule also exempts committees and other groups of senators.

Sen. Vincent Fort, D-Atlanta, spoke against the group exemption when the Senate debated the rule. He said he had hoped for a tougher stance from the House.

“It’s just disappointing,” he said. “The House Republicans were looking down at the Senate rule with disdain. I thought they were going to come with a stronger (bill).”

One of the allowed groups is for lawmakers who represent specific counties or cities. These are called “local delegations” and in metro counties they can be two dozen House members in size. But that’s not the case for most of the state.

In fact, 40 members of the House are the lone delegates for at least one county, including the chairs of 10 committees and Ralston himself. In the Senate 29 of the chamber’s 56 members represent all of at least one county.

The bill says delegations are set by House and Senate rules, but it does not mandate how they are to be defined. If delegations include cities, the number of sole delegates grows even more as most small cities are represented by just a single member of each chamber.

The bill also allows spending on caucuses recognized by the House and Senate ethics committees. Along with the party caucuses, there are a number of traditional caucuses in each chamber, including the black caucus, the rural caucus and a women’s caucus.

Since HB 142 was unveiled, lobbyists have reported spending money on some more exotic and previously unknown caucuses, including the “Pharmacy Caucus,” the “Savannah River Basin Caucus” and the “House Majority Sophomore Caucus.” It is unknown how the ethics committees would view the newcomers.

If the reform bill passes, it’s reasonable to expect lobbyists and lawmakers to test the boundaries of the new rules.

“I think there is a very high likelihood that it can be received as a fertile ground for circumvention of the rules,” Passantino said of the group exemption.

A possible weakness in the group exemption is that spending is allowed if the lobbyist invites all members of the group, even if only a fraction of the group accepts the invitation. It also says nothing about how or when the lobbyist is to make the invitation.

North Carolina has a strict lobbying gift ban, but it includes a similar exemption for groups. Jane Pinsky, director of the North Carolina Coalition for Lobbying and Government Reform, said the exemption allows lobbyists to “cherry pick” an allowed group by issuing separate invitations, including some at the last minute to guarantee a small, select group.

“Then we are back to the old-fashioned wining and dining,” she said.

Pinsky pointed to Maryland’s law as a better model.

That state allows lobbyists to sponsor group events for the General Assembly, either chamber, standing committees or a select set of 12 local and regional delegations. Invitations must go out five days in advance of the event and are filed with the state. After the event, lobbyists file a separate form listing the date, location and cost of the event and who was invited.

The ‘natural person’ clause

Even with its exceptions, Ralston’s bills do expressly ban some common gifts.

A specific provision in the bill identifies “tickets for admission to athletic, sporting, recreational, musical concert or other entertainment events” as prohibited as gifts.

That’s is no small thing. Last year lobbyists handed out around $60,000 in tickets to public officials for the Braves, Falcons, Hawks, college football – even movies and the zoo. Most of that would be banned under the bill.

But that rule isn’t ironclad, either. Legislators may accept college football tickets from lobbyists if tickets are made available to every member of the General Assembly. This preserves the “legislative day” when state universities offer boatloads of tickets to a specific game.

One “glaring issue” Passantino noted is that the bill defines a lobbyist as a “natural person” – a legal definition meaning a real, flesh-and-blood human. House Bill 142 limits the ban to gifts given by natural persons.

Passantino said it raises the serious legal question of whether the bill would ban gifts paid for – directly or indirectly – by a lobbyist’s corporate client.

Some of this could be worked out by allowing the state ethics commission the freedom to interpret the new law by creating rules around it. The commission lost rulemaking authority under House Speaker Glenn Richardson, but Ralston’s bill would give it back.

That’s a real strength of the bill, said Josh Belinfante, a former member of the state ethics commission. Rulemaking would allow the commission to set “some bright lines” on what is fair and what’s unfair according to the law, he said.

“When I was on the commission, we weren’t able to do that,” he said.

Onus on the official?

Another little-noticed provision in the bill forbids public officials from accepting banned gifts from lobbyists, Belinfante said. If the bill passes, it will be the first time public officials are required by law to vet any gifts they receive.

With six official days left in the 40-day legislative session, Senate officials would not confirm when they would begin debate of the bill or what their plans might be. Publicly senators defend their $100 cap as preferential to Ralston’s ban while Ralston has dismissed a cap as unacceptable.

Despite the posturing, a stalemate is a real possibility. If the bill fails, senators can claim the mantle of the reformer by pointing to their rule, while representatives can say they passed reform only to have it torpedoed in the Senate.

Already both chambers are trumpeting their achievements while casting an eye toward the other side of the Capitol.

“When the Senate acts, members of the House stand ready to continue working in good faith to see real ethics reform signed into law,” Ralston’s spokesman Marshall Guest said in a prepared statement.

“We are committed to building on that tremendous progress and continuing to strengthen our state’s ethics laws. This is an ongoing discussion within the Senate and with our colleagues in the House,” said Senate Rules Chairman Jeff Mullis, R-Chickamauga, also in a prepared statement.

Some in the Senate plan on pushing the issue. Sen. Mike Crane, R-Newnan, is shopping around a proposal to replace both the House and Senate plans with a $20 cap on individual gifts with an $1,800 annual cap. That gets closer to what voters really want, he said.

“In the House version there is no limit. It just changes the way this (spending) manifests itself,” he said. “To me, it seems a lot more time and effort was spent trying to create loopholes. What we owe the people is something that is easy to understand and is reasonable.”

Crane said he has Republican leaders in the Senate about his plan. If time runs out on HB 142, he said he will move to have it adopted as a tougher Senate rule.

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